The Sword and The Robe

With the victory of Ronald Reagan to the White House in 1980, the mood in the country and on the high Court turned increasingly conservative. In this new era, Nixon-appointed Chief Justice Warren Burger stepped up his public statements supporting the rights of crime victims. In February 1981, the Chief Justice spoke before the American Bar Association and criticized the judicial system for providing “massive safeguards for accused persons” while failing to provide “elementary protection for its decent, Iaw abiding citizens.” With this new “get-tough-on- crime” mood, Justice Marshall felt that the limited protection of criminal rights would be lost in the trample for punishment. Breaking ranks with his Brethren, Marshall spoke out in this highly publicized May 8, 1981 speech before the Second Circuit Judicial Conference in what struck many as a direct response to Burger and the conservatives:

The Sword and The Robe
By Thurgood Marshall

The task of interpretation is the cornerstone of the judicial process. As we undertake it, we must strive for neutrality. None of us is perfect, and I recognize that neutrality is more ideal than real. Each of us brings along to the judicial role certain preconceived biases. It is, I suppose, impossible to make a decision totally uninfluenced by them. But we as judges must try to do so to the extent we possibly can.

This ideal of neutrality is particularly hard to maintain in times such as these, when our society faces major unsolved problems. Indeed, we judges are frequently criticized these days for our neutrality. For example, it is argued by some members of our society that the judiciary has not taken an active enough role in combating crime. It is urged that we as judges, should take sides, that we should stand shoulder to shoulder with the police and prosecutors. Convictions should be easier, appellate review more rapid and resort to habeas corpus – what the founders of this republic called the Great Writ – drastically curtailed. All of this frightens me, because when I was in law school, I was taught not that judges were there to see the defendant convicted and punished in every case but that they were there to see justice done in every case. Of course the state had to carry a heavy burden to obtain a conviction. Of course appellate judges would weigh each case carefully. Of course an individual, once convicted, could attack his sentence later. This, so I was taught, was not to coddle the guilty but to protect the innocent. I was raised in the days when the prevailing maxim was: “It is better that a thousand guilty people go free than that one innocent person suffer unjustly.

Well, that’s just what I was taught, and maybe I was taught wrong. But the suggestion that we as judges take sides frightens me for another, more fundamental reason as well. As I have said, judges are required in our system to be as neutral as they possibly can, to stand above the political questions in which the other branches of government are necessarily entangled. The Constitution established a legislative branch to make the laws and an executive branch to enforce them. Both branches are elected and are designed to respond to everchanging public concern, and problems. Indeed, as we were reminded just last November, the failure of either branch to respond to the will of the majority can quickly be remedied at the polls.

Bar the framers of the Constitution recognized that responsiveness to the will of the majority may, if unchecked, become a tyranny of the majority. They therefore created a third branch – the judiciary – to check the actions of the legislature and the executive. In order to fulfill this function, the judiciary was intentionally isolated from the political process and purposely spared the task of dealing with changing public concerns and problems. Article III judges are guaranteed life tenure. Similarly, their compensation cannot be decreased during their term in office – a provision, as we have recently seen, that certainly has its tangible benefits, Finally, the constitutional task we are assigned as judges is a very narrow one. We cannot make the laws, and it is not our duty to see that they are enforced. We merely interpret them through the painstaking process of adjudicating actual “cases or controversies” that come before us.

We have seen what happens when the courts have permitted themselves to be moved by prevailing political pressures and have deferred to the mob rather than interpret the Constitution. Dred Scott, Plessy, Korematsu, and the trial proceedings in Moore v. Dempsey, come readily to mind as unfortunate examples. They are decisions of which the entire judicial community, even after all these years, should be ashamed. There have also been times when the courts have stood proudly as a bulwark against what was politically expedient but also unconstitutional. One need only recall the school desegregation cases to understand why this ability to stand above the fray is so important.

Our central function is to act as neutral arbiters of disputes that arise under the law. To this end, we bind ourselves through our own code of ethics to avoid even the appearance of impropriety or partiality. We must handle the cases that come before us without regard for what result might meet with public approval. We must decide each case in accordance with the law. We must not reach for a result that we, in our arrogance, believe will further some goal not related to the concrete case before us. And we must treat the litigants in every case in an evenhanded manner. It would be as wrong to favor the prosecution in every criminal case as it would be to favor the plaintiff in every tort suit.

We must never forget that the only real source of power that we as judges can tap is the respect of the people. We will command that respect only as long as we strive for neutrality. If we are perceived as campaigning for particular policies, as joining with other branches of government in resolving questions not committed to us by the Constitution, we may gain some public acclaim in the short run. In the long run, however, we will cease to be perceived as neutral arbiters, and we will lose that public respect so vital to our function.

I do not suggest that we as judges should not be concerned about the problem of crime. Every thinking American is worried about it. And just about all of us have lurking somewhere in the back of our minds what we consider the ideal solution.

But when we accepted the judicial mantle, we yielded our right to advocate publicly our favored solutions for society’s problems. The tools for solving these problems are in the hands of the other branches of government because that is where the Constitution has placed them. That is also where we should leave them. I therefore urge that you politely disregard any suggestion that you give up the robe for the sword.